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People v. McKnight9/2/1980
The appellant, Dewey Kenneth McKnight, was convicted in district court of Driving After Judgment Prohibited, section 42-2-206, C.R.S. 1973. McKnight has appealed, challenging the constitutionality of the statutes upon which his conviction is based. We affirm the conviction but vacate the sentence and remand the case to the trial court for resentencing.
A brief outline of the relevant statutes will be of assistance in understanding the events in this case. The habitual traffic offender statute, sections 42-2-201 to 208, C.R.S. 1973, defines an habitual traffic offender as one having a designated number of convictions for specified traffic offenses within a prescribed period of time. Section 42-2-202, C.R.S. 1973. The Colorado Department of Revenue, Motor Vehicle Division (DMV), is authorized to conduct hearings to determine whether a person is an habitual traffic offender and to revoke the driver's license of an habitual traffic offender for a period of five years. Sections 42-2-203 and 205, C.R.S. 1973. Anyone who operates a motor vehicle in Colorado while his driver's license is under revocation by reason of his status as an habitual traffic offender is guilty of Driving After Judgment Prohibited, a class 5 felony. Section 42-2-206, C.R.S. 1973. In sentencing for that crime, probation and suspension of sentence are prohibited unless the defendant establishes that he had to drive because of an emergency. Id.
On August 11, 1977, a state patrolman noticed that an automobile driven by the appellant had an expired state inspection sticker, and stopped the vehicle. When the appellant could not produce a driver's license, the patrolman investigated and discovered that the appellant's driver's license had been revoked because he had been found to be an habitual traffic offender. See section 42-2-203, C.R.S. 1973. The appellant subsequently was charged with Driving After Judgment Prohibited, in violation of section 42-2-206, C.R.S. 1973.
At trial the prosecution presented evidence that on August 11, 1977, the appellant had been operating a motor vehicle within Colorado. The prosecution then introduced an order of revocation dated May 19, 1977, signed by a hearing officer for the DMV, together with testimony that the order remained in effect on August 11, 1977. The order contains a finding that the appellant's record sustains revocation of his driver's license because of his status as an habitual traffic offender, and orders revocation of that license for a period of five years. See section 42-2-203 and 205, C.R.S. 1973. The appellant's signature, acknowledging service of the original copy of the order, appears on the face of the order.
On the reverse side of the order appears the following written advisement, signed by McKnight:
"ADVISEMENT OF RIGHTS: I have been advised of the purpose of this hearing and the possible consequences. I understand I am subject to REVOCATION as provided in 42-2-203 C.R.S. 1973 as amended. I also understand that pursuant to 42-2-127 C.R.S. 1973 as amended, I may obtain judicial review of the hearing officer's determination if applied for within thirty days from the date of this hearing."
The advisement contains a notation that "student counsel" and the appellant's wife appeared at the hearing.
McKnight was 67 years of age at the time of the license revocation hearing. He testified that he had driven knowing that his license had been taken away and
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